Docket: T-2187-16
Citation:
2017 FC 1071
Ottawa, Ontario, November 27, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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CAPTAIN
KIMBERLY Y. FAWCETT
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
On February 21, 2006, Captain Kimberly Fawcett,
a member of the Canadian Forces [CF] was involved in a tragic motor vehicle accident
while taking her son to daycare on the way to work. The accident resulted in
the death of her son and Captain Fawcett losing her right leg above the knee. She
seeks judicial review of the November 7, 2016 decision of the Chief of Defence
Staff [CDS] concluding that she was not on duty at the time of the accident and
that the injuries sustained were not attributable to military service. Captain Fawcett
argues that because she and her husband were serving in high readiness units,
and because she was taking her son to daycare pursuant to a CF Family Care Plan
[FCP], she was on duty and acting pursuant to a CF order at the time of the
accident.
[2]
For the reasons that follow, I conclude that Captain
Fawcett’s unique circumstances were reasonably considered by the CDS but were
not found to support her argument that she was engaged in military service at
the time of the accident. Considering the deference owed to the CDS decision,
this is a reasonable conclusion and therefore this judicial review is
dismissed. I decline to award costs.
I.
Background
[3]
At the time of the accident in 2006, Captain Fawcett
was a Planning Officer with the Canadian Forces Joint Support Group [CFJSG] in
Kingston, ON. Both Captain Fawcett and her husband were serving in high
readiness units in the CF. After completing her maternity leave on February 6,
2006, Captain Fawcett returned to work and completed a FCP pursuant to Defence
Administrative Order and Directive 5044-1 (Families) [DAOD 5044-1].
[4]
On February 20, 2006, Captain Fawcett’s husband was
notified that he had to report to work early on the morning of February 21,
2006 for training for imminent deployment. Captain Fawcett therefore assumed
responsibility for taking their son to daycare on the day of the accident. Captain
Fawcett states that she notified her supervisor that she was “activating her FCP” and would be late arriving at
work. She states that her supervisor agreed. Unfortunately, while taking her
son to daycare on the way to work, Captain Fawcett was involved in the motor
vehicle accident referenced above.
[5]
The CF Summary Investigation [SI] of the
accident completed on May 8, 2006 found that Captain Fawcett was on duty at the
time of the accident, because the travel to daycare and work were required to
enable her to perform her work duties. However, the SI concluded that her injuries
were not attributable to military service.
[6]
Captain Fawcett’s application for disability benefits
was denied by Veterans Affairs Canada [VAC] in October 2006 as VAC concluded
that Captain Fawcett’s injuries were not attributable to military service.
[7]
When she returned to work, Captain Fawcett was
advised by her Pension Advocate and another official that VAC places
significant weight on the SI report in determining pension eligibility. Captain
Fawcett filed a grievance on June 2, 2009 in relation to the SI, alleging that
she was on duty at the time of the accident and therefore the injuries she sustained
were attributable to military service. The Chief of Military Personnel [CMP]
wrote a letter in support of Captain Fawcett’s claim.
[8]
Once a grievance is filed, section 29 of the National
Defence Act, RSC 1985, c N-5 and article 7 of the Queen’s Regulations
and Orders for the Canadian Forces [QR&O] outline two levels of
decision-making. The first level, the Initial Authority [IA], is the commanding
officer, or the commander or officer appointed as the Director General or above
at National Defence Headquarters. The second level, the Final Authority [FA],
is the CDS or his delegate. On August 6, 2009, the Commander of Canadian
Operational Support Command determined that the IA for the grievance was the
Director Support Casualty Management.
[9]
However, on September 21, 2009 the Director
General, Personnel and Family Support [DGPFS] apparently acted as IA and notified
Captain Fawcett that her application was out of time and therefore treated it
as an administrative matter, not an official grievance. The DGPFS did not
support the application.
[10] On May 6, 2010, Captain Fawcett was notified that the DGPFS was not
the appropriate IA as he rendered his decision as a civilian, and grievances
must be determined by military personnel (QR&O, article 7.06).
[11] At this point, Captain Fawcett, rather than electing to have the
claim re-determined by an appropriate IA, had the claim forwarded to the FA.
Subsequently, the FA, the Director General, Canadian Forces Grievance Authority
acting on delegation from the CDS, denied the claim.
[12] The initial decision by the FA was quashed by this Court on a
judicial review for reasons of procedural fairness (see: Fawcett v Canada
(Attorney General), 2012 FC 750).
[13] On April 16, 2015, the FA again denied Captain Fawcett’s claim and
this Court again remitted the matter for reconsideration before the FA because
of deficiencies in the record.
[14] The third consideration by the FA is the decision now under review.
II.
CDS Decision Under Review
[15] The decision under review is the November 7, 2016 FA decision of the
CDS. In the decision the CDS notes that he had two issues to determine: (1)
whether Captain Fawcett was on duty at the time of the accident, and (2)
whether the injuries sustained during the accident were attributable to
military service.
[16] The CDS rejected Captain Fawcett’s submissions that since she was required
to have a FCP in place she was executing the plan and therefore on military
duty when she dropped her son off at daycare. The CDS considered the historical
reasons for the requirement of a FCP. He noted that the content of the FCP is
determined by the individual completing the FCP. The CDS therefore concluded
that the FCP did not constitute a “regulated military
duty” but rather a “contingency plan.”
The fact that Captain Fawcett received permission to come to work late because
of her husband’s attendance at training for imminent deployment did not
constitute the execution of the FCP. According to the CDS, the FCP is only
triggered when members are taken away from their family to attend to military
duties.
[17] The CDS also rejected Captain Fawcett’s argument that she had a “unit” FCP with her husband, which was activated on
the day of her accident. The CDS concluded that such a “unit”
FCP does not exist in accordance with CF regulations.
[18] The CDS considered the decision in Cole v Canada (Attorney
General), 2015 FCA 119 [Cole] which sets out the test for the
determination of “attributable to military service.”
Though Cole concerned the issue of pension benefits, the CDS noted that
the same language is used to describe “attributable to
military service” in both the Pension Act and the CF
Administrative Order 24-6 Investigation of Injuries and Death [CFAO
24-6]. However, the CDS noted that no provision exists under CFAO 24-6
requiring that its provisions be “liberally construed
and interpreted,” unlike the Pension Act which contains this interpretive
directive.
[19] With respect to the “attributable to
military service” requirement, the CDS reiterated his finding that
personal factors, and not military service, were the cause of Captain Fawcett’s
injuries.
III.
Issues
[20] Captain Fawcett raises the following issues with the CDS decision:
- Did the CDS properly
consider the impact of the FCP?
- Is the finding
that Captain Fawcett was not on duty at the time of the accident
reasonable?
- Is the finding
that Captain Fawcett’s injury was not attributable to military service
reasonable?
IV.
Standard of Review
[21] The parties agree that the standard of review of the CDS decision is
reasonableness.
[22] In this context however, the reasonableness standard is applied even
more deferentially because of the highly specialized nature of the grievance
process within the CF (François v Canada (Attorney General), 2017 FC 154
at para 32; Higgins v Canada (Attorney General), 2016 FC 32 at paras 75-77).
[23] Captain Fawcett did not raise any issues of procedural fairness.
V.
Analysis
A.
Did the CDS properly consider the impact of the FCP?
[24] Captain Fawcett argues that the CDS failed to properly consider the
unique circumstances of her family situation when he was considering the FCP.
[25] The FCP is provided for in DAOD 5044-1. It exists to assist service
members with planning for family care needs in the event of an absence for duty
reasons. The FCP Declaration, at issue in this case, consists of two parts.
[26] Completion of Part I of the FCP is mandatory. DAOD 5044-1 requires that
all members complete Part I of the form, which states that the CF member
has a FCP in place, and has established it “in
good-faith”. However, DAOD 5044-1 expressly notes that Part II of the
form “may also be completed at the option of a member
to provide information to unit authorities concerning the member’s FCP.”
[27] Although DAOD 5044-1 notes that it is only mandatory to complete Part
I, Captain Fawcett argues that because her unit and her husband’s unit were in “high readiness” states, she was effectively required
to complete Part II of the FCP. She points to CFJSG Standing Order 35-1 (Family
Care Plan) [the Standing Order], which defines the FCP in the context of
Captain Fawcett’s unit at the time of the accident. The Standing Order
provides:
The overall purpose of this direction is to
maximize deployability. Many CF personnel have not passed their DAG due to
family care issues. The CF is attempting to ensure that plans are made, with a
view to allow personnel to proceed on duty without unnecessary delays.
[28] Captain Fawcett further notes that there are repercussions for not
completing the FCP, according to DAOD 5044-1.
[29] She argues that the combined effect of the high readiness
requirements of her and her husband’s units, along with the repercussions of
not completing a FCP, makes the FCP tantamount to a CF order. In her
circumstances she argues that the FCP was triggered because her husband was training
for imminent deployment and she assumed the FCP obligations.
[30] Captain Fawcett’s argument misapprehends the nature of the FCP
described above. Part I of the FCP is the only part to which penalties attach.
Specifically, DAOD 5044-1 notes that disciplinary action can be taken if a
member does not in good-faith take into account family circumstances in
the preparation of the FCP.
[31] This, however, is separate from the execution of the FCP and
the content of Part II. A commanding officer cannot tell a member to execute
the FCP, nor can a commanding officer dictate the content of Part II of the
FCP. In fact, DAOD 5044-1 notes that while a member may seek advice on the
preparation of the FCP, the form submitted by the member may be reviewed by
authorities “for completeness only.” There are
no penalties which attach to the completion or failure to complete Part II of
the FCP.
[32] Accordingly, the operative content of Captain Fawcett’s FCP is Part
II, which contains information dictated by Captain Fawcett’s particular family
circumstances, and not dictated by the CF. By contrast, the only component of
the FCP to which military repercussions may attach for failure to complete is
Part I, which is simply a declaration that there is a FCP is in place.
[33] The provision relied upon by Captain Fawcett in the Standing Order
does not contradict the fundamental purpose of the FCP set out in DAOD 5044-1.
While Captain Fawcett and her husband were in high-readiness units, that does
not change the nature of the FCP as a contingency plan, the operative content
of which is defined by CF members themselves.
[34] The situation might be different if either Captain Fawcett or her
husband were in fact deployed. However, that was not a consideration for the
CDS, and based upon the circumstances, the CDS reasonably concluded that the fact
that both she and her husband were in high readiness status was not sufficient
to trigger the FCP.
[35] Therefore, the conclusion by the CDS that “no
military-business purpose was served” when Captain Fawcett was excused
from her duties was a reasonable conclusion.
B.
Is the finding that Captain Fawcett was not on
duty at the time of the accident reasonable?
[36] Captain Fawcett’s arguments with respect to being on duty at the time
of the accident are tied to her argument that the FCP was a CF order. She
argues that since she was executing her FCP at the time of the accident, she
was on duty. She argues that the CDS finding that she was not “on duty” at the time of the accident is not
reasonable.
[37] Whether Captain Fawcett was on duty at the time of the accident
involves an interpretation of DAOD 5044-1 and CFAO 24-6, which defines the
concept of duty.
[38] The relevant provision of CFAO 24-6 provides as follows at section
28:
Duty. In some cases difficulty may be
encountered in determining whether the injured person was on duty. The best policy
is to place a wide interpretation on the meaning of the word “duty.” Any
attempt to define this word is likely to be unduly restrictive or so nebulous
as to be of little value. Without restricting the foregoing, as a general rule
a member is considered to be on duty:
[…]
d. when he is at a specific place, or doing
a specific act, because of a military order;
[39] The CDS reviewed DAOD 5044-1 in light of this definition of duty by
considering its text, context, and purpose. This was an appropriate approach to
the interpretation of the relevant policies and directives in light of their
statutory context (Canada (Canadian Human Rights Commission) v Canada
(Attorney General), 2011 SCC 53 at paras 32-34).
[40] The CDS considered the background to the establishment of the FCP as
described in the Standing Committee on National Defence and Veterans Affairs
Report [the Report]. The Report notes the purpose of the FCP is to address “what happens when military personnel have to deploy on very
short notice at any time of the day.” However, the Report specifically
notes that family needs on a routine day are not the purpose of the FCP.
[41] Accordingly, the CDS concluded that the FCP was not applicable to
the circumstances where Captain Fawcett was dropping her son off at daycare, but
had not been called away from family for military duty.
[42] This is a reasonable conclusion in light of the basis upon which the
FCP requirement was established. In the circumstances, Captain Fawcett was not
at a place or doing an act because she was so directed by the military. Rather,
she was in fact away from military duty at the time of the accident.
[43] The CDS did not err by concluding that Captain Fawcett sought and
received permission to be away from duty for family reasons, whereas the
FCP only governs absences from family for duty reasons.
[44] The CDS’ conclusion that Captain Fawcett was exercising a parental
responsibility outside of the confines of a military order or duty was based on
a reasonable interpretation of the relevant directives and legislation.
C.
Is the finding that Captain Fawcett’s injury was
not attributable to military service reasonable?
[45] Captain Fawcett argues that the CDS unreasonably attributed personal
factors to the analysis of her activity on the morning of the accident. She
argues that the CDS should have considered the fact that she and her husband
were in high readiness units, meaning the CF exercised a high degree of control
over their lives. This fact, coupled with the FCP requirement, she argues,
provides the nexus to conclude that she was engaged in “military
service” at the time of the accident. She argues that the CDS took an
unreasonably narrow or restrictive interpretive approach.
[46] The relevant provision of CFAO 24-6 dealing with attributability states
as follows:
30. Attributability. As a general rule
“attributable to military service” is interpreted as meaning “arose out of or
was directly connected with service”… While most injuries that occur while on
duty are attributable to military service, the one does not necessarily follow
the other. For instance, if a member was injured while on duty as a direct
result of his improper conduct, it should not be considered attributable to
military service. On the other hand, an injury might occur while not on duty
but the circumstances make it attributable. For instance, if a member was
injured not while on duty but as a result of the dangerous condition of
military quarters, it could be considered attributable to service.
[47] The CDS acknowledged that there are two concepts within this definition,
namely: “directly connected with military service”
and “arose out of military service.” In both
instances he concluded that the meaning cannot be stretched to capture the
concept of parental responsibilities equating military service.
[48] The CDS considered the decisions in Cole and Canada
(Attorney General) v Frye, 2005 FCA 264 [Frye] in assessing attributability.
However, the CDS distinguished both Frye and Cole. Those cases
were decided under the Pension Act, which requires that its terms be
interpreted liberally. As noted above, no such requirement exists under CFAO
24-6.
[49] Captain Fawcett disagrees, and points to s.27 of CFAO 24-6, which
provides that:
27. Findings. …While the Canadian Pension
Commission is not bound to follow the findings of the investigations, and makes
its own decision based on the evidence, the Commission will often be assisted
by the opinions of military authorities, especially in doubtful cases. Section
85 of the Pension Act requires the Commission to resolve “all reasonable
inferences and presumptions in favour of the applicant.” The remarks of
military authorities may well be considered as establishing a basis of
reasonable inference or presumption.
[50] However, this provision does not impose a requirement to liberally
interpret CFAO 24-6; rather, it contemplates that the remarks of military
authorities may assist an applicant under the Pension Act. While Captain
Fawcett may ultimately seek to establish entitlement to a disability award, her
substantive claim in this case is governed by military directives, notably CFAO
24-6.
[51] Therefore, the CDS’ interpretation of CFAO 24-6 as different from
the Pension Act was not an error. Given the deference owed to the CDS,
his conclusion that Captain Fawcett’s discharge of her parental responsibilities
was not attributable to military service was reasonable, especially since the
FCP does not constitute a military order or duty.
[52] Overall, the CDS considered the appropriate legislation, directives
and case law in reaching his conclusion. Captain Fawcett has pointed to no
other reviewable error in the assessment of the evidence by the CDS. Therefore,
the CDS finding is within the range of possible outcomes and on a
reasonableness review there is no basis for this court to intervene.
VI.
Conclusion
[53] While Captain Fawcett makes very able and persuasive arguments,
because of the high level of deference owed to the findings of the CDS, there
is also a high threshold to meet to demonstrate that the CDS decision is
unreasonable. Unfortunately, Captain Fawcett has not met that threshold. This
judicial review is therefore dismissed. However, considering the lengthy
administrative history to this judicial review, not occasioned through any
fault of Captain Fawcett, I decline to award costs.
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